법체계의 단계구조에서 법률의 명확성에 대한 판단 기준 -공직선거법 제250조 제1항 허위사실공표죄의 위헌성에 관하여

Abstract

The clarity of law is essential to maintain the legal order of the state stably, We need to interpret the law because it is a human norm which is specifically invoked and takes the form of positivity and generality. The clarity of the law is judged by whether we can derive the reasonable and objective standard of a law interpretation from the laws. The national assembly, the government and the courts are the the subjects to interpret the laws in the course of the formation, the enforcement of law and the legal control. No power should interpret the law exclusively. In addition, the clarity of the law is recognized when it reaches a universal conclusion through interpretation. Preventing that a power interprets the law arbitrarily, we should understand the separation of the powers functionally to reach a universal conclusion. A static system of norms should be combined with a dynamic system of norms for a legal system consisting of legislation, administration, and justice exists as a unified normative system. We need to focus on a dynamic system of norms besause authorized norms act as a link and establish an independent legal system. A legal system creats and regulates legal order through the hierarchy of legislative, administrative, and judicial order as a phase structure. It is based on a passive people to whom the agencies apply the law unilaterally at the administrative phase. Furthermore, the administrative agency interprets the law to secure its own authority from the control of the national assembly. At this phase, the clarity of the law is judged whether we can derive the objective standard for interpretation from the law on the premise of the administrative agency's legal interpretation, On the other hand, a trial begins at the judicial phase when an individual files a lawsuit against the administrative agency's enforcement of the law. A legal interpretation places emphasis on the guarantee of individual rights, especially fundamental right at this phase. The clarity of the law is judged whether we can the objective standard for interpretation from the laws on the premise of a fundamental rights-oriented interpretation, In consequence, the attribute standards at the judicial phase are as follows. First, formal rule of law which is limited to the relation between the national Assembly and the government extends to substantial rule of law that is related to the constitution centered on fundamental rights. Secondly, a degree of clarity of the law depends on a type of fundamental right restricted by law and administrative action. Third, the clarity of the law means that it provides the same content to the person who trusts the law and the agency which execute laws.